The Second Circuit set out three requirements to establish a municipality's deliberate indifference to a citizen's constitutional rights for a failure to train of supervise. Walker v. City of New York, 974 F.2d 293, 297 (2d Cir.) cert. denied, 507 U.S. 961, 122 L. Ed. 2d 762, 113 S. Ct. 1387 (1993). First the Plaintiff must show that the policymaker knows "to a moral certainty that her employees will confront a given situation. Thus, a policymaker does not exhibit deliberate indifference by failing to train employees for rare or unforeseen events." Walker, 974 F.2d at 297. Second, the Plaintiff must show "that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation." Id. Finally, the Plaintiff must evidence that "the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights." Id. at 298 (citing City of Canton v. Harris, 489 U.S. 378, 390, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989)).

Defendants claim first that Plaintiff's § 1983 claim is insufficient under Walker "because it pleads malicious prosecution" rather than deliberate indifference. (Defs.' Mem. Law at 18). The Court does not agree. Plaintiff alleges deliberate indifference, not malicious prosecution, against four separate City organizations.
*fn2"
Plaintiff's Complaint also properly alleges deliberate indifference to his constitutional rights by specifically alleging the deprivation of his rights under the Fourth, Sixth, Eight and Fourteenth Amendments of the United States Constitution. (Compl. P 62). Thus, this Court finds that Plaintiff's § 1983 claim of deliberate indifference against the City of New York is sufficiently pled.

To demonstrate that Plaintiff's allegations meet the Walker requirements, however, Plaintiff must show that Defendant, the City of New York, knew that its employees would confront a given situation. See Walker, 974 F.2d at 297. In Plaintiff's Complaint, he alleges that the City of New York, by virtue of the Department of Health, the Queens District Attorney's Office, the New York City Police Department and the New York City Department of Social Services/Human Resources knew that its employees would confront allegations of child sexual abuse in custody disputes. (Compl. PP 43-46, 47-53, 54-57, 58-63). Under the standard of review of a motion for judgment on the pleadings, this Court is obliged to accept Plaintiff's allegations as true. Accordingly, Plaintiff can demonstrate the first Walker requirement by alleging that the City of New York was aware that its employees would confront situations involving allegations of child sexual abuse in contested custody cases.

The second Walker requirement states that a plaintiff must show either "that a situation presents an employee with a difficult choice that training will make less difficult, or that there is a history of employees mishandling the situation." 974 F.2d at 298 (emphasis added). Plaintiff's allegations certainly indicate a history of mishandling situations involving Brady material. While the allegations may not replicate those made in Walker, Plaintiff's claims do rise to a deliberate indifference to a history of mishandling Brady material. As such, Plaintiff's allegations are sufficient to satisfy the second element of Walker.

As to Dr. Sabbagh, Plaintiff's Complaint alleges two other instances in which the doctor's examinations of children were contradicted by subsequent examinations. (Compl. P 45) Further, Plaintiff notes that Dr. Sabbagh has testified in over 600 other cases. (Compl. P 45). If allowed further discovery on the professional conduct of Dr. Sabbagh, Plaintiff may similarly be able to demonstrate that the City has failed to train Dr. Sabbagh appropriately to confront situations involving allegations of child sexual abuse in custody cases. Thus, this Court also finds that Plaintiff has successfully pled the second element of Walker as to Dr. Sabbagh.

Plaintiff alleges violations of rights conferred by the Fourth, Sixth, Sight and Fourteenth Amendments. (Compl. P 62). These rights are well established and well defined. If, as Plaintiff's Complaint alleges, Dr. Sabbagh was knowingly falsifying records and perjuring herself (Compl. PP 42-46), it is hard for this Court to imagine how she could not have understood that her actions might implicate Plaintiff's constitutional rights.

As to the City of New York, a municipality can only be liable for a constitutional violation "where the municipality itself causes the constitutional violation at issue" by one of its policies or customs. City of Canton v. Harris, 489 U.S. 378 385, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989); see also Monell v. Dept. of Social Services, 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Plaintiff has alleged deliberate indifference on the part of the City of New York and this Court finds that Plaintiff successfully states a claim on this ground. See supra. Because this Court must accept these allegations as true for the purposes of a motion on the pleadings, this Court finds that the municipality's deliberate indifference (as alleged) created the injuries suffered, and is subject to liability.

Defendants also argue that Plaintiff cannot hold Dr. Sabbagh liable because she did not initiate the prosecution against Plaintiff. Generally, one who "merely responds to requests for information or who testifies as a witness does not, by those acts, institute or continue a prosecution." Whittaker, 473 F. Supp. at 909. However, if "it is found that [the defendant's] persuasion was the determining factor in inducing the officer's decision, or that he gave information which he knew to be false and so unduly influenced the authorities, he may be liable. Id. at 911 (citing Prosser, Law of Torts, 836-837 (4th Ed. 1971)).

Plaintiff alleges that Dr. Sabbagh knowingly gave false testimony. (Compl. at P 24). The New York Court of Appeals held that an eyewitness to an attempted robbery, who identified a suspect and confirmed her identification, could not be held liable under the tort of malicious prosecution because she had "played no part in plaintiff's arrest or imprisonment other than to provide information to the legal authorities identifying plaintiff as the perpetrator of the crime." Collins v. Brown, 129 A.D.2d 902, 514 N.Y.S.2d 538, 540 (N.Y. App. Div. 3d Dep't. 1987). The plaintiff in Collins was unable to succeed because he could not establish that his indictment was produced by fraud, perjury, the suppression of evidence or other conduct undertaken in bad faith. Collins, 514 N.Y.S.2d at 540 (citing Colon v. City of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 456, 455 N.E.2d 1248 (N.Y. 1983); Boose v. City of Rochester, 71 A.D.2d 59, 421 N.Y.S.2d 740 (N.Y. App. Div. 4th Dep't. 1979)).

Plaintiff alleges that the indictment was produced by the perjurious testimony of Dr. Sabbagh. (Compl. P 24). Under the 12(c) standard of review, this Court is obligated to accept Plaintiff's allegations as true. Accordingly, this Court finds that, as to Dr. Sabbagh, Plaintiff has successfully stated the first element of malicious prosecution.

The first element of Plaintiff's allegation against the City is more easily met as the City was clearly responsible for initiating the criminal prosecution through the Queens County District Attorney's Office and the New York City Police Department. Thus, as to Defendant New York City, Plaintiff has sufficiently stated the first element of a claim of malicious prosecution.

The second element of a claim of malicious prosecution requires the Plaintiff to demonstrate that the proceeding was terminated in his favor. The Appellate Division in People v. Baba-Ali reversed Plaintiff's conviction on the grounds of prosecutorial misconduct and ineffective assistance of counsel. People v. Amine Baba-Ali, 179 A.D.2d 725, 578 N.Y.S.2d 633 (N.Y. App. Div. 2d Dep't. 1992). Accordingly, Plaintiff's allegations meet the second element of malicious prosecution.

Plaintiff's allegations implicate the City of New York and Dr. Sabbagh for perjury. (Compl. PP 44-65). Accepting these allegations as true, it is clear that Plaintiff has established the third element of a malicious prosecution claim.

As to the fourth element of a malicious prosecution claim, Plaintiff must show that the defendant commenced or continued the criminal prosecution for an improper motive, or with malice, rather than see "the ends of justice served." Fowler v. Robinson, 1996 U.S. Dist. LEXIS 1710, 94 Civ. 836, 1996 WL 67994, *8 (N.D.N.Y. Feb. 15, 1996) (citation omitted). There is a "close relationship under New York law as to the lack of probable cause and actual malice, the fourth element of a malicious prosecution claim." Post v. Elser, 1996 U.S. Dist. LEXIS 10210, 92 Civ. 1146, 1996 WL 406843, *8 (N.D.N.Y. July 19, 1996) Thus, actual malice can be inferred from a lack of probable cause for the initiation of criminal proceedings. Fowler, 1996 WL 67994 at *8. Because Plaintiff has stated a lack of probable cause, an inference can be drawn under New York law that the prosecution was initiated with actual malice. Thus, this Court finds that Plaintiff has stated a claim upon which relief can be granted.

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.